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WASHINGTON — When the U.S. Supreme Court heard arguments last October in the juvenile death penalty case Roper v. Simmons, Justice Anthony Kennedy seemed to tip his hand with an unusual line of questions. “I have one other question I’d like to ask because it’s been troubling me,” Kennedy said to former solicitor general Seth Waxman. Waxman was arguing on behalf of Missouri inmate Christopher Simmons in his challenge to the law that allows execution of those who committed their crimes at ages 16 and 17. “If we ruled in your favor and this decision was given wide publicity, wouldn’t that make 16-, 17-year-olds subject to being persuaded to be the hit men for the gangs?” Waxman, partner at Wilmer Cutler Pickering Hale and Dorr, replied that the over-18 “Fagin” of such a gang could be dealt with separately. Kennedy was not satisfied. Twice he came back to the point, fretting about the loss of the “deterrent value” of exposing juveniles to the death penalty, then pointing to a “chilling” brief filed by the state of Alabama that chronicles heinous crimes committed by 17-year-olds. Kennedy, it seemed, was a lost crucial vote for those who hoped the court would abolish the juvenile death penalty. Wrong. Four months later, Kennedy wrote the opinion for a 5-to-4 majority striking down the death penalty for under-18s. He made no mention of his underage hit man concerns, and cited the Alabama brief only in passing. So much for predicting the votes of Supreme Court justices based on the tenor of oral argument. You never can tell, right? Well, maybe you can, if you do it right. Kennedy, it seems, is the exception to the rule. In a new study entitled “The Illusion of Devil’s Advocacy: How the Justices of the Supreme Court Foreshadow their Decisions During Oral Argument,” Sarah Shullman came up with a surprisingly simple and accurate way of predicting outcomes based on the number and tenor of oral argument questions by justices. Shullman’s article, in The Journal of Appellate Practice and Process, reports on oral arguments in 10 cases she observed during the October 2002 term. As she watched, she tallied the number and tenor — helpful or hostile — of all the questions asked by all the justices. Then a student at Georgetown University Law Center, Shullman is now an associate at Steel Hector & Davis in West Palm Beach, Florida. After seven of the 10 cases she studied were decided, Shullman looked for correlations — and found them. In all of the cases, the justices in aggregate asked more questions, and more hostile questions, of the party that ultimately lost the case. The model of the devil’s advocate — peppering the side you favor with tough questions — did not appear prevalent enough to derail this conclusion. Shullman also found that Justice Ruth Bader Ginsburg asked the most questions — and the least hostile ones — of all the justices, and that Justice Stephen Breyer asked the most hostile questions. But his was equal-opportunity hostility, handed out in equal measure to both sides. Justice Sandra Day O’Connor, often viewed as the mystery swing vote, turned out to be highly predictable using this method — she asked more than three times as many questions of the party she then voted against than the party she supported. Chief Justice William Rehnquist was, oddly enough, one of the least predictable, according to his nearly equal questioning of both sides. What about Justice Clarence Thomas, who almost always remains silent on the bench? “Because Justice Thomas is rarely a swing vote, his silence should not pose an obstacle in most cases” to prediction, she writes. Justice Kennedy’s questioning, she found, correlated least predictably with his ultimate votes. He asked roughly the same number and type of questions of both sides. Hence, perhaps, his misleading signals in Roper. Parenthetically, we know from other sources — most recently the Blackmun papers at the Library of Congress — that Kennedy, more than other justices, is prone to changing his mind after oral arguments. For Kennedy, the oral argument is not the final act of the play. He is a notorious brooder. Kennedy’s classic metaphorical m�lange, first uttered to journalist Terry Carter as he deliberated abortion rights in 1992, still reverberates: “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.” In any event, on the basis of her early success, Shullman proceeded to predict the remaining three cases she had charted that were still pending before the high court. And bingo! She was correct each time. A couple of justices strayed and asked more questions of the side they ultimately favored, but overall the justices turned out to be “quite predictable,” she says. “Essentially, whether they do it by asking more questions or by asking questions that are more hostile in content, the justices simply give the side they disagree with a harder time,” she concludes. “This information suggests that one might profitably use an analysis of their questions to predict what was previously thought to be unpredictable.” Shullman acknowledges that her sample was small, but the methodology has already been tested since she did her study. John Roberts, Jr., one of the masters of the trade before taking the bench in 2003, used her theory for a talk he gave on oral advocacy before the Supreme Court Historical Society last year. Picking 14 oral arguments from the 1980 term and 14 from the 2003 term, Roberts found that in fact the most questions went to the losing party in 24 of the 28 cases — an 86 percent rate of accuracy. “The secret to successful advocacy,” Roberts deadpanned in conclusion, “is simply to get the court to ask your opponent more questions.” An 86 percent success rate in making predictions compares favorably with that of other players in the growing field of Supreme Court prognosticators. Political scientists have gotten into the game to test the relative importance of precedents and politics in Supreme Court decision making. The Supreme Court Forecasting Project, based at Washington University in St. Louis, used statistical models and a panel of experts to predict the results in the cases argued in the 2002 term. The statistical method, based on data such as the circuit of origin and an analysis of precedents, came out right 75 percent of the time, while the human experts predicted outcomes correctly in 59 percent of the cases. At a symposium on the project, Linda Greenhouse of The New York Times got into the spirit of things and looked back at her stories from the same term and found that in the 16 decided cases in which she ventured a prediction, she was right 75 percent of the time. The allure of the question-count method is not just that it is simple, but that it now will be incalculably easier to use. Since last October, transcripts of the court’s oral arguments have named the justices asking the questions. (Before, they were listed only as “question,” with no identification of the justice asking it.) Now all you need to do is search the .pdf files of transcripts for the names of each justice, and you’ll have the count. Coming back to the Roper case, what would have happened if predictions had been based on the overall question count, rather than on a single line of questioning by Justice Kennedy? Kennedy, it turns out, asked the same number of questions of both sides, and in retrospect, some of his questions to Missouri’s advocate were hostile as well. But the overall number of questions told the story: Waxman fielded 40 questions, while Missouri’s state solicitor James Layton took 58. Missouri gets the most questions; Missouri loses. Maybe hard cases are not so hard after all. Supreme Court correspondent Tony Mauro wrote this article for Recorder affiliate The American Lawyer, based in New York.

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